An employment relationship can be concluded in writing, orally or tacitly through implied behavior. In all three cases, the employment contract is equally effective. Although the law stipulates that employment relationships can only be terminated in writing, the establishment of an employment relationship does not require the written form.
However, if differences of opinion arise during the employment relationship regarding whether the employee is entitled to an overtime bonus, a vacation allowance or some other benefit, the employee who has only been given a verbal promise will face considerable difficulties in providing evidence. If the employee wants to assert claims against their employer, they must prove that the desired service is contractually agreed. Since the employee usually conducts the job interview alone, he has no witness for verbal agreements. If he has a written contract, its content is considered complete and correct, so that the employee can confidently assert the services contained therein – in court if necessary. Since a large number of employees still do not have a written employment contract, the legislator created the Nachweisgesetz (German Law on the Duty to Provide Information). This law obliges every employer to hand over to the employee, no later than one month after the agreed start of work, a signed record of all essential contractual conditions. This document must include the following information:
- the name and address of the contracting parties
- commencement of the employment relationship
- Place of employment
- Description of the work
- the amount and composition of earnings, including all supplements, allowances, bonuses and special payments
- working hours, vacation duration, notice periods, as well as a reference to relevant collective agreements and company agreements.
This proof must not be provided in electronic form. In the case of marginally employed persons (400.00-euro workers), it must be pointed out that they can choose the compulsory pension insurance if they make their own top-up payments.
The employee's right to demand this certificate is inalienable. It is therefore not lost through the passage of time, so that even employees who have worked for 20 years or more without a written employment contract can demand the written documentation.
Any change to the essential terms of the contract must also be documented in writing. The employer must provide the notification one month after the date of the change.
If the employer fails to provide the written proof or provides an incorrect one despite the employee's request, the employee can legally enforce his or her claim for the creation and delivery of the proof. Proper documentation of the contract content is also in the employer's interest, especially if he or she wants to assert claims against the employee that require a contractual basis, such as the reclaim of a bonus in the event of contract termination, the transfer to another job, the return of a company car during a leave of absence. A written contract creates legal certainty and avoids legal disputes that cost time and money and disrupt the peace of the company.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.